The lawsuit may change the way the US Embassy and Consulate process K1 fiance visa refusal cases to give a visa applicant the opportunity to rebut consular officer's findings, appeal if the visa is denied, and not be subject to the misrepresentation bar.
New York, NY (PRWEB) July 2, 2010
A U.S. based immigration lawyer, Brent Renison, from the law firm PARRILLI RENISON LLC, has recently filed a class action lawsuit against the U.S. Department of State (“State Department”), Department of Homeland Security (“DHS”) and United States Citizenship and Immigration Services (“USCIS”) challenging the immigration policies and procedures for returning approved fiance visa petitions to USCIS with a recommendation that the petition be revoked. Dzu Cong Tran v. Napolitano, 3:10-CV-724-ST (D.Or. filed June 24, 2010) (class action lawsuit challenging K-1 petition return policies of the U.S. State Department and Department of Homeland Security) filed in the United States District Court, District of Oregon, Portland Division.
Three years ago the USCIS Ombudsmand had issued recommendations to DHS and USCIS regarding necessary changes to the standards and processes for re-adjudication of petitions returned by consular officers for revocation because of a systemic nationwide failures of the immigration system. Only some of the recommendations were implemented and some specifically rejected. The class action lawsuit involves some of the recommendations which were rejected.
For a K1 fiance(e) to acquire permanent resident, the US citizen first obtains an approved I-129F petition filed with DHS/USCIS. 8 U.S.C. §1184(d); 8 C.F.R § 214.2(k)(1). The K1 petition approval requires that the couple have met in person within two years of the filing of the petition and must have a bona fide intention to marry within 90 days of the fiance's arrival. 8 U.S.C.§1184(d)(1).
If the fiance(e) visa petition is denied, DHS/USCIS shall explain in writing the specific reasons for the denial and notify the petitioner of the right to appeal. If the fiance(e) visa petition is approved then it bears a four month validity period which the consular officer has the discretion to extend. However, if it appears to the consular officer that statements in the application or in documents submitted that the fiance(e) is not eligible to receive a visa, the officer shall refuse the visa. 8 U.S.C.§1201(g). If the visa is refused then the affirmed K1 petition is returned to DHS/USCIS with the officer's recommendation for revocation. Additionally, when a visa case is returned to USCIS the State Department place a marker called a “P6C1” marker, or “quasi-refusal” in an applicant's record so the revocation of the petition automatically establishing a permanent misrepresentation bar to any future immigration possibility under INA 212(a)(6)(C)(i).
When the State Department return the affirmed K1 visa petition, DHS/USCIS will not review such returned petition, nor will they provide the visa applicant with the opportunity to rebut consular officer's findings. The applicant will not have an opportunity to appeal and in light of the P6C1 marker, may face a permanent bar to admissibility for misrepresentation.
The class action lawsuit recently filed in Oregon alleges contradictory and unlawful practices of the agencies have caused class members to be subjected to arbitrary, capricious, and unlawful visa denials and therefore been deprived of their due process of law. Specifically, the class action challenges USCIS' policies and procedures for revoking, denying or terminating petitions that the State Department return.
For the US citizen petitioner who has filed and received an approved I-129F for a K1 visa or K3 visa, any policy or procedural changes originated under this lawsuit may mean consular processing service that is streamlined, judicious, and efficient. It shall remove any unnecessary visa delays and inconsistent, arbitrary visa refusals. Furthermore, the visa applicant will be able to obtain written notice of the legal and factual basis for their K1 and K3 visa denial instead of being issued a boiler plate 221(g) blue sheet which does not detail the consular officer's findings. US citizen petitioners will then be given the opportunity to rebut the findings within a reasonable time after the decision. More importantly given the opportunity to appeal the decision if the visa was denied. For the US citizen petitioner who has filed and received a reaffirmation of approval, to deliver the reaffirmed petition to the State Department and compel them to issue the K1 visa within a reasonable period of time.
The resounding effect of the lawsuit is the requirement that consular officers provide a succinctly written notice supported by the legal and factual basis for the visa denial, permit the visa applicant the opportunity to rebut the findings, and compel DHS/USCIS to take action that is conclusive, and provide the petitioner an opportunity to appeal the consular officer's findings.
# # #